Citation Nr: 0014516
Decision Date: 06/02/00 Archive Date: 06/09/00
DOCKET NO. 96-29 328 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for a lung disorder,
claimed as due to Agent Orange exposure.
2. Whether new and material evidence has been submitted to
warrant reopening a claim seeking service connection for a
skin disorder, claimed as due to Agent Orange exposure.
3. Whether new and material evidence has been submitted to
warrant reopening a claim seeking service connection for a
stomach disorder, to include stomach ulcers.
4. Whether new and material evidence has been submitted to
warrant reopening a claim seeking service connection for a
back disorder.
5. Entitlement to a greater initial evaluation for the
veteran's service connected post-traumatic stress disorder
(PTSD), currently evaluated as 10 percent disabling.
6. Entitlement to an increased evaluation for the veteran's
service connected neurological residuals of a fracture of the
right wrist, currently evaluated as 10 percent disabling.
7. Entitlement to an effective date earlier than September
20, 1995 for the assignment of the 10 percent disability
evaluation for the veteran's service connected neurological
residuals of a fracture of the right wrist.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Lemoine, Counsel
INTRODUCTION
The veteran had active military service from December 1966 to
May 1968.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a notice of
disagreement in writing received within one year of the
decision being appealed and, after a statement of the case
has been furnished, a substantive appeal received within 60
days of the issuance of the statement of the case or within
the remainder of the one-year period following notification
of the decision being appealed.
The Board received this case on appeal from a series of
rating decisions of the RO. A March 1996 rating decision
denied an increased (compensable) evaluation for the
veteran's service connected neurological residuals of a
fracture of the right wrist. The rating decision also denied
service connection for PTSD; and a skin disorder, claimed as
due to Agent Orange exposure. The decision also determined
that new and material evidence had not been submitted to
warrant reopening claims seeking service connection for a
back disorder and a stomach disorder. In June 1996, the
veteran submitted a notice of disagreement as to all the
issues denied in the March 1996 rating decision and he was
also issued a statement of the case as to all those issues.
In July 1996, the veteran perfected his appeal as to these
five issues by submission of a VA Form 9, substantive appeal.
In the above referenced June 1996 notice of disagreement, the
veteran also claimed service connection for a lung disorder,
claimed as due to Agent Orange exposure. A June 1996 rating
decision denied the lung disorder claim. In August 1996, the
veteran submitted a notice of disagreement pertaining to that
issue and he was furnished a statement of the case. In
January 1997, the veteran, accompanied by his representative,
appeared and presented testimony at a hearing on appeal
before a VA hearing officer. A complete transcript of the
testimony is of record. The Board accepts the hearing
testimony in lieu of a substantive appeal and accordingly,
this issue was also perfected for appeal.
Subsequently, by an October 1997 rating decision, an
increased evaluation of 10 percent was granted for the
veteran's neurological residuals of a fracture of the right
wrist. However, the veteran's appeal regarding this issue
was continued. The October 1997 rating decision also granted
service connection for PTSD assigning a 10 percent disability
evaluation for that disorder. The veteran was notified that
this was considered a grant in full of the benefits sought
regarding the PTSD claim, as service connection was granted.
However, in October 1997, the veteran submitted a notice of
disagreement with the initial evaluation assigned his PTSD.
Also in October 1997, he was provided with a statement of the
case pertaining to the initial evaluation for his PTSD. The
veteran perfected his appeal as to the issue of the initial
evaluation for his PTSD by submission of a substantive appeal
in October 1997 and again in November 1997.
The Board notes that throughout the development of this
appeal, the RO has characterized the issue regarding the skin
disorder claimed as due to Agent Orange exposure as one of
entitlement to service connection. The Board notes, however,
that issue was previously denied by an April 1994 rating
decision which was not appealed. Accordingly, the issue is
more properly characterized as whether new and material
evidence has been submitted to warrant reopening a claim
seeking service connection for a skin disorder, claimed as
due to Agent Orange exposure. The Board has so
recharacterized the issue as reflected on the title page
hereinabove. This is significant to the Board because the
preliminary question of whether a previously denied claim
should be reopened is a jurisdictional matter that must be
addressed before the Board may consider the underlying claim
on its merits. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir.
1996).
The final issue currently certified to the Board is the issue
of entitlement to an effective date earlier than September
20, 1995 for the assignment of the 10 percent disability
evaluation for the veteran's service connected neurological
residuals of a fracture of the right wrist. In November
1997, the veteran submitted a VA Form 9, on which he
expressed his disagreement with the effective date for the 10
percent disability evaluation assigned by the October 1997
rating decision. The Board accepts that writing as a notice
of disagreement as to this issue. The veteran was furnished
with a statement of the case in March 1999 pertaining to the
earlier effective date issue and the veteran was notified of
the need to submit a substantive appeal in order to perfect
his appeal. The veteran submitted another VA Form 9 in April
1999, and although that VA Form 9 made no mention of the
earlier effective date issue, mentioning only the previously
developed claims instead, the Board will nonetheless accept
it as an adequate substantive appeal perfecting this issue
for appellate review.
It is noted that in November 1999, the veteran, accompanied
by his representative, appeared and presented testimony at a
video-conference hearing before the undersigned Member of the
Board. A complete transcript of the testimony is of record.
Finally, the Board further notes that, during the development
of the above identified issues, the veteran submitted an
additional claim, seeking service connection for a heart
disorder. This claim was contained within the above
referenced July 1996, VA Form 9, substantive appeal,
submitted by the veteran. An April 1994 rating decision
which was not appealed, had previously denied entitlement to
service connection for a heart disorder, claimed as due to
Agent Orange exposure. By a July 1996 administrative
decision, the RO determined that the claim was previously
denied by the April 1994 rating decision and the veteran was
requested to submit new and material evidence. The veteran,
in August 1996, submitted a written notice of disagreement
with that administrative decision. The RO did not
subsequently provide a statement of the case addressing this
issue. Although the issue has not been fully developed for
appeal, as no statement of the case has been issued, nor has
a subsequent substantive appeal been received, the Board will
further discuss the issue of whether new and material
evidence had been submitted to warrant reopening the claim
seeking service connection for a heart disorder, claimed as
due to Agent Orange exposure in the Remand portion of this
decision.
REMAND
Initially, the Board notes the veteran has indicated in the
record that he is in receipt of disability benefits from the
Social Security Administration (SSA). The veteran testified
to this during his video-conference hearing before the
undersigned Board Member. (See Transcript, p. 17). It is
unclear from the record what medical evidence was submitted
to the SSA in support of this claim. Nonetheless, the Board
notes that there are multiple issues currently developed for
appeal and it is impossible to determine whether there could
be evidence in the veteran's records with SSA which would be
helpful in adjudicating some of the currently pending claims,
unless those records are first obtained for review.
Accordingly, such records should be obtained prior to
resolution of any of the outstanding claims. VA has a duty
to assist in gathering SSA records when put on notice that
the veteran is receiving such benefits. Clarkson v. Brown, 4
Vet. App. 565 (1993). VA's duty to assist under 38 C.F.R.
§ 5107(a) also includes the duty to obtain SSA determinations
and the medical records upon which such decisions are based.
Masors v. Derwinski, 2 Vet. App. 181 (1992). See also
Murincsak v. Derwinski, 2 Vet. App. 363, 370-371 (1992), and
Baker v. West, 11 Vet. App. 163, 169 (1998), citing the
Murincsak precedent and declaring that "[p]art of the
Secretary's obligation is to review a complete record."
In addition to the above reasons for remand, the Board notes,
upon preliminary review of the evidentiary record, that,
under applicable legal criteria, the April 1994 rating
decision, which denied service connection for a skin
disorder, claimed as due to Agent Orange exposure; the
November 1968 and November 1988 rating decisions that denied
service connection for a stomach disorder; and the March 1989
rating decision that denied service connection for a back
disorder; were all final rating decisions, as the veteran did
not file a timely appeal to any of them. See 38 C.F.R.
§§ 3.104, 20.302, 20.1103. However, a claim may be reopened
if new and material evidence is submitted. 38 U.S.C.A.
§ 5108.
Because the present appeal as to these issues does not arise
from original claims, but rather comes from an attempt to
reopen claims which were previously denied, the Board must
bear in mind the important distinctions between those two
types of claims. The United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter "the Court")
has previously held that the Secretary of Veterans Affairs,
and, on appeal, the Board, were required to perform a two-
step analysis when a claimant sought to reopen a claim based
upon new evidence. First, it was to be determined whether
the evidence was "new and material." Second, if the Board
determined that the claimant had produced new and material
evidence, the claim was reopened and the Board evaluated the
merits of the veteran's claim in light of all the evidence,
both old and new. Manio v. Derwinski, 1 Vet. App. 144
(1991). Whether the new evidence was "material" turned
essentially upon the reasonable possibility that, when viewed
in the context of all the evidence, it would change the
outcome. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991).
The Court recently held that the two-step Manio process has
been replaced with a three-step process. See Elkins v. West,
12 Vet. App. 209 (1999) (en banc), interpreting and applying
a decision of the United States Court of Appeals for the
Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir.
1998). See also Winters v. West, 12 Vet. App. 203, (1999)
(en banc). The procedure which we must now follow is -
first, it must be determined whether the appellant has
presented new and material evidence under 38 C.F.R.
§ 3.156(a); second, after the claim has been reopened, it
must be determined whether, based upon all the evidence of
record, the claim, as reopened, is well grounded; third, if
the claim is well grounded, the merits of the claim must be
addressed, but only after ensuring that the duty to assist
has been fulfilled. Winters, 12 Vet. App. 203. In addition,
Hodge overruled Colvin and its progeny as to the materiality
element of the new-and-material-evidence test. See Elkins,
12 Vet. App. 209.
As defined by regulation, new and material evidence means
evidence not previously submitted which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which, by
itself or in connection with the evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). The Federal Circuit Court has held that the
regulatory standard alone must be the test of materiality.
Hodge, 155 F.3d. 1356.
In determining whether new and material evidence has been
presented, VA must initially decide whether evidence
submitted since the prior final denial is, in fact, new. As
indicated by the regulation cited above, and by judicial
caselaw, "new" evidence is that which was not of record at
the time of the last final disallowance ("on any basis" -
merits or otherwise) of the claim, and is not "merely
cumulative" of other evidence that was then of record. See
Evans v. Brown, 9 Vet. App. 273, 283-285 (1996). This
analysis is undertaken by comparing newly received evidence
with the evidence previously of record. After evidence is
determined to be new, the next question is whether it is
material.
As to the materiality standard, the Federal Circuit's holding
in Hodge was further interpreted by a panel of the Court of
Appeals for Veterans Claims: "Hodge provides for a
reopening standard which calls for judgments as to whether
new evidence (1) bears directly or substantially on the
specific matter, and (2) is so significant that it must be
considered to fairly decide the merits of the claim."
Fossie v. West, 12 Vet. App. 11, 20-21 (1998). In
determining whether newly submitted evidence is material
under the caselaw discussed above, we are further guided by
the Federal Circuit Court's discussion of the "uniquely pro-
claimant" quality of the veterans' benefits system such
that, although "not every piece of new evidence is
'material' . . . we are concerned . . . that some new
evidence may well contribute to a more complete picture of
the circumstances surrounding the origin of a veteran's
injury or disability, even where it will not eventually
convince the Board to alter its ratings decision." Hodge,
155 F.3d. 1356, at 1363. Finally, the credibility of new
evidence is assumed for the limited purpose of determining
whether it is material. Justus v. Principi, 3 Vet. App. 510
(1992).
Having discussed the appropriate legal analysis to be applied
to all of the veteran's claims seeking to reopen previously
denied claims, the Board notes that the RO, within the
original statement of the case and all subsequent
supplemental statements of the case, proceeded to analyze all
the veteran's new and material claims by applying the
impermissible test set forth in Colvin, requiring that, in
order to reopen a previously denied claim, "there must be a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both new and old, would
change the outcome." No other basis was articulated for
denial of reopening of the claims, and the RO did not address
whether there is evidence, not previously submitted, which
bears directly and substantially upon the specific matter
under consideration, which is neither cumulative nor
redundant, and which, by itself or in connection with the
evidence previously assembled, is so significant that it must
be considered in order to fairly decide the merits of the
claim.
The Court has stated that, when the Board addresses a
question not addressed by the RO, the Board must consider
whether or not the claimant has been given adequate notice of
the need to submit evidence or argument on that question and
an opportunity to submit such evidence and argument. If not,
it must be considered whether the veteran has been prejudiced
thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In
addition, if the Board determines the veteran has been
prejudiced by a deficiency in the statement of the case, the
Board should remand the case to the RO pursuant to 38 C.F.R.
§ 19.9 (1999), specifying the action to be taken. Bernard,
at 394.
Accordingly, the Board finds that all the veteran's claims
regarding new and material evidence were adjudicated by the
RO applying the impermissibly restrictive standard of Colvin,
as specifically overruled by Hodge. Since the veteran's
claims were adjudicated by the RO under an impermissibly
strict standard, the veteran has been prejudiced. As
provided for by Bernard, the Board must therefore remand
these claims to the RO for readjudication, as to the
reopening issue, under 38 C.F.R. § 3.156.
The Board will next address the veteran's claim seeking an
increased initial evaluation for his PTSD. The Court
addressed the distinction between a veteran's dissatisfaction
with the initial rating assigned following a grant of service
connection, and a later claim for an increased rating. See
Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court
held that, at the time of an initial rating, separate ratings
can be assigned for separate periods of time based upon the
facts found - a practice known as assigning "staged" ratings.
It is unclear that such was considered by the RO in this
case. As it is necessary to remand all the veteran's claims
for other reasons discussed within this remand, it is also
appropriate that Fenderson by cited and taken into
consideration by the RO on remand regarding the initial
rating for his service connected PTSD. The RO has not
considered whether staged ratings are appropriate as to this
claim, and must do so.
In addition to the issue of Fenderson, the Board notes that
the veteran has previously been diagnosed with PTSD and
service connection has been granted for that disorder.
However, the record also reflects that the veteran has been
diagnosed with a number of acquired psychiatric disorders and
personality disorders, for which service connection is not in
effect. Furthermore, recent VA examinations did not show any
diagnosis of PTSD at all. Under such circumstances, it is
not possible for the Board to determine what portion of the
veteran's symptomatology is due to his service connected
disorder, if his service connected PTSD is present at all. A
remand is necessary in this case so that the veteran may be
scheduled for another VA psychiatric examination to determine
his current diagnosis and assess any manifestations thereof.
In order to be absolutely clear, the Board emphasizes that
the objective of a further examination should be to obtain
clarifying data as to the degree of impairment from the
veteran's service-connected PTSD, including a determination
of what psychiatric symptomatology is directly attributable
to the service-connected disorder. The impact of any non-
service-connected disorders should be addressed, and the
veteran's VA outpatient treatment records and prior medical
records must also be addressed. This in turn, will permit an
accurate assessment of the current severity of the veteran's
service-connected disorder, as opposed to symptomatology
attributable to non-service-connected disorder(s). If his
service connected disorder is no longer present, such should
be so clearly indicated.
VA has a duty to assist a veteran in developing facts
pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. §§ 3.103, 3.159 (1999). The Board
finds the veteran's claim for increased compensation benefits
is "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a). The Court has held that, when a veteran claims a
service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet. App.
629 (1992). VA therefore has a duty to assist him in
developing the facts pertinent to his claim. That duty
includes obtaining medical records and medical examinations
where indicated by the facts and circumstances of an
individual case. See Murphy v. Derwinski, 1 Vet. App. 78
(1990); Littke v. Derwinski, 1 Vet. App. 90 (1990).
In addition to the above, the Board notes that the rating
criteria have been changed for all psychiatric disorders,
effective on November 7, 1996. When the regulations
concerning entitlement to a higher rating are changed during
the course of an appeal, the veteran is entitled to
resolution of his claim under whichever criteria are to his
advantage. Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Although the RO has indicated in the prior supplemental
statements of the case that both the old and new criteria
were considered, the Board notes for the RO's benefit that
the veteran continues to be entitled to the resolution of his
claim under whichever criteria are more favorable. See also
DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).
In addition to the above, as indicated in the Introduction
hereinabove, in August 1996, the veteran submitted a timely
notice of disagreement with a July 1996 administrative
decision that determined new and material evidence had not
been submitted to warrant reopening a claim of entitlement to
service connection for a heart disorder, claimed as due to
Agent Orange exposure. However, the Board notes that the
veteran was not furnished with a subsequent statement of the
case pertaining to the issue, nor has he submitted a
substantive appeal. The applicable regulation requires that,
following the notice of disagreement, the veteran and his
representative must be provided with a statement of the case
that contains, in pertinent part, "a summary of the evidence
in the case relating to the issue or issues with which the
appellant or representative has expressed disagreement," and
a "summary of the applicable laws and regulations, with
appropriate citations, and a discussion of how such laws and
regulations affect the determination." See 38 C.F.R.
§ 19.29 (1999).
Judicial precedent holds that the failure to issue a
statement of the case in such circumstances is a procedural
defect requiring a remand. Godfrey v. Brown, 7 Vet.
App. 398, 408-10 (1995). See also Archbold v. Brown, 9 Vet.
App. 124, 130 (1996); Manlincon v. West, 12 Vet. App. 238,
240-241 (1999). However, an appeal shall thereafter be
returned to the Board only if perfected by filing a timely
substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97
(1997). See also In re Fee Agreement of Cox, 10 Vet.
App. 361, 374 (1997) ("absent an NOD, an SOC and a Form 1-9
[substantive appeal], the BVA was not required - indeed, it
had no authority - to proceed to a decision") (citation
omitted).
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following actions:
1. The RO should contact the Social
Security Administration and request
copies of any disability determination by
that agency pertaining to the veteran,
granting, denying, or terminating
benefits, as well as any medical records
used in determining the eligibility of
the veteran for disability benefits by
that agency.
2. The RO should take appropriate steps
in order to contact the veteran and
obtain the names and addresses of all
medical care providers (VA and non-VA)
who have recently treated the veteran for
any of his claimed disorders. After
securing the necessary releases, the RO
should obtain any outstanding records.
3. The RO should take the appropriate
steps to secure copies of all of the
veteran's VA treatment records, not
already of record, and associate them
with the claims folder.
4. The RO should then schedule the
veteran for a VA psychiatric examination,
for the purpose of assessing the degree
of social and industrial impairment
resulting from his service-connected
PTSD. Before examining the veteran, the
examiner should carefully review the
veteran's claims folder, and review both
the old and the new rating criteria for
mental disorders. If appropriate, all
indicated tests to include psychological
testing should be conducted in
association therewith. The findings of
the examiner must address the presence or
absence of the specific criteria set
forth in the rating schedule. The
examiner should also be requested to
assign a score on the Global Assessment
of Functioning (GAF) scale, and to
describe what the score means for the
veteran in terms of his psychological,
social, and occupational functioning. In
addition, the symptomatology directly
attributable to the veteran's service-
connected disorder should be fully
discussed, and the presence of any other
existing mental disorders should be
evaluated. To the extent possible,
symptoms attributable to any other
disorder should be distinguished from
those associated with the service-
connected disorder. The psychiatric
examiner should comment on the
interference with gainful employment
attributable solely to the service-
connected disorder, as opposed to any
mental or physical non-service connected
disorder. If such distinction is not
possible, the examiner should so
specifically indicate. If there is no
finding of PTSD, or the examiner
determines that PTSD is no longer
present, such should be Company clearly
indicated. A complete rationale for all
opinions expressed must be provided.
5. With regard to all the instructions
set forth above, the veteran is advised
of his obligation to cooperate by
providing the requested information to
the extent possible and by reporting for
the scheduled examination, and his
failure to cooperate may result in
adverse action pursuant to 38 C.F.R.
§ 3.158 and § 3.655.
6. After the above indicated development
is completed, the RO should undertake any
further warranted development and should
review the complete record of evidence
and argument received since the last
rating decision of record. The RO should
determine whether any further development
of the medical record is appropriate, to
include scheduling the veteran for any
further VA examinations. Such
development as deemed appropriate by the
RO should be completed.
7. After all the development requested
hereinabove has been completed, then the
RO should again review all the veteran's
claims, as each has been identified on
the title page hereinabove.
As to all the claims regarding whether
new and material evidence has been
submitted to reopen previously denied
claims of service connection, in making
the determinations, the RO should follow
the provisions of 38 C.F.R. § 3.156(a),
in accordance with the guidance of Hodge,
Elkins, and Winters, and not the more
restrictive requirements previously set
forth in Colvin.
As to the claim seeking an increased
initial evaluation for PTSD, the RO
should again consider the evaluation of
the veteran's PTSD disorder under both
the old and new rating criteria and rate
in accordance with the guidance expressed
by the Court in Karnas, and Fenderson.
If any determination remains unfavorable
to the veteran, the RO should furnish
him, and his representative, with a
supplemental statement of the case, in
accordance with 38 U.S.C.A. § 7105;
38 C.F.R. § 19.29, 19.31.
8. As to the issue of whether new and
material evidence had been submitted to
warrant reopening the claim seeking
service connection for a heart disorder,
claimed as due to Agent Orange exposure,
the RO should again review the record and
issue the veteran and his representative
a statement of the case addressing that
issue. The veteran and his
representative should then be given the
required time to respond thereto in order
to perfect an appeal. The RO should
specifically notify the veteran that the
appeal as to this issue, if denied, will
be returned to the Board, following the
issuance of the statement of the case,
only if it is perfected by the veteran by
the filing of a timely substantive
appeal.
The case should be returned to the Board for further
appellate consideration, if otherwise in order, following
appropriate appellate procedure.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. The purpose of this REMAND is to further develop
the record and ensure due process of law. No action is
required by the veteran until he receives further notice.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).